The Perry v. Schwarzenegger trial was going to be recorded and uploaded to YouTube, but the Supreme Court temporarily prevented that until Wednesday so that it can consider the issue in more depth. Once it does, how will it rule?

To begin with, Judge Walker no longer wants to upload recorded videos of the trial to YouTube; instead, he wants to have a link to the videos placed directly on the court's website.

It comes down to who's supposed to make public broadcasting rules for the federal courts:

  • The side wanting to prevent broadcasting of the trial says it should be the U.S. Judicial Conference, which writes the general policies for federal courts.
  • The side wanting to allow broadcasting says it should be the Ninth Circuit Judicial Council, which makes policy for the Ninth Circuit, where the trial is being held.

Lyle Denniston suggested over at SCOTUSblog, which tracks Supreme Court developments, that the Supreme Court might even decide that it shouldn't meddle into the trial procedures of federal district courts:

This exchange apparently signals that, when the Supreme Court further considers the issue, it may have to decide the legal status of the Judicial Conference policy, as compared to that of the Ninth Circuit’s Judicial Council, which has authorized the TV “pilot project” to apply to the Prop. 8 trial. And the Justices may also have to consider the scope of their own “supervisory power” over a question of trial procedure in the federal District Courts.

Both sides filed briefs with the Court last night and this morning, so I expect a ruling by tomorrow.

[Cross-posted at the Gay Couples Law Blog, which discusses same sex family law, estate planning, and taxes.]

Gideon Alper

Gideon Alper

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